Shapiro v. United States (335 U.S. 1)/Dissent Frankfurter

Mr. Justice FRANKFURTER, dissenting.

The Court this day decides that when Congress prescribes for a limited Governmental purpose, enforceable by appropriate sanctions, the form in which some records are to be kept, not by corporations but by private individuals, in what in everyday language is a private and not a Governmental business, Congress thereby takes such records out of the protection of the Constitution against self-incrimination and search and seizure. Decision of constitutional issues is at times unavoidable. But in this case the Court so decides when it is not necessary. The Court makes a drastic break with the past in disregard of the settled principle of constitional adjudication not to pass on a constitutional issue-and here a grave one involving basic civil liberties-if a construction that does no violence to the English language permits its avoidance. This statute clearly permits it. Instead, the Court goes on the assumption that an immunity statute must be equated with the privilege, although only recently the Court attributed to Congress a gratuitous grant of immunity where concededly the Constitution did not require it, under circumstances far less persuasive than the statutory language and the policy underlying it. See United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376.

Instead of respecting 'serious doubts of constitutionality' by giving what is at least an allowable construction to the Price Control Act which legitimately avoids these doubts, the Court goes outo f its way to make a far-reaching pronouncement on a provision of the Bill of Rights. In an almost cursory fashion, the Court needlessly decides that all records which Congress may require individuals to keep in the conduct of their affairs, because they fall within some regulatory power of Government, become 'public records' and thereby, ipso facto, fall outside the protection of the Fifth Amendment that no person 'shall be compelled in any criminal case to be a witness against himself.'

In reaching out for a constitutional adjudication, especially one of such moment, when a statutory solution avoiding it lay ready at hand, the Court has disregarded its constantly professed principle for the proper approach toward congressional legislation. 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598, quoted by Mr. Justice Brandeis with supporting citations in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, note 8, 56 S.Ct. 466, 484, 80 L.Ed. 688. And see, generally, for duty to avoid constitutional adjudication, Rescue Army v. Municipal Court, 331 U.S. 549, 568 et seq., 67 S.Ct. 1409, 1419, 91 L.Ed. 1666.

Departure from a basic canon of constitutional adjudication is singularly uncalled for in a case such as this, where the statute not only permits a construction avoiding constitutional considerations but on fair reading requires it.

In conferring powers of investigation upon the Administrator, Congress designed to secure the promptest disclosure of the books and records of the millions of private enterprises subjected to the regulations of the Office of Price Administration. The would contradict that vital aim to attribute to Congress the conflicting purpose of hampering the free flow of knowledge contained in businessmen's books by inviting controversies regarding still undetermined claims of privilege under the Fifth Amendment, in the absence of an expression of such propose made much more manifest than the broad language of § 202(g) which conferred immunity for the very purpose of avoiding such controversies.

It is a poor answer to say that if the statute were eventually found to confer immunity only to the extent required for supplying an equivalent for the constitutional privilege, all records would turn out to be unprivileged or would furnish immunity, and in either case refute any excuse for withholding them. Business men are not guided by such abstractions. Obedience is not freely given to uncertain laws when they involve such sensitive matters as opening the books of business. And so, business men would have had a strong incentive to hold back their records, forcing the Administrator to compel production by judicial process. Apart from the use of opportunities for obstructive tactics that can hardly be circumvented when new legislation is tested, delays inevitable to litigation would dam up the flow of needed information. Congress sought to produce information, not litigation. See United States v. Monia, supra, 317 U.S. at page 428, 63 S.Ct. at page 411.

In the Monia case the Court considered that the statute, 'if interpreted as the Government now desires, may well be a trap for the witness.' Id., 317 U.S. at page 430, 63 S.Ct. at page 412. We need not speculate here as to potential entrapment. The record discloses that the petitioner asked, through his attorney, whether he was 'being granted immunity as to any and all matters for information obtained as the result of the investigation and examination of these records.' On behalf of the Price Administrator, the reply was 'The witness is entitled to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept pursuant to MPRs (Maximum Price Regulations) 271 and 426.' Petitioner, himself, thereupon specifically claimed immunity under the statute as well as under the Constitution, and stated that under 'these conditions' he produced the books and records that the subpoena sought. It seems clear that disclosure was here made, records were produced, on the petitioner's justifiable belief based upon the advice of counsel and acquiesced in by the presiding official-that he thereby secured statutory immunity and not constitutional litigation.

There is nothing to indicate that in 1942 Congress legislated with a view to litigating the scope of the limitation of the Fifth Amendment upon its powers. To ascertain what Congress meant by § 202(g) we would do well to begin by carefully attending to what Congress said: 'No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C.1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege.' 56 Stat. 23, 30, 50 U.S.C.Supp. V, § 922, 50 U.S.C.A. Appendix, § 922.

The text must be put into its context, not merely because one provision of a statute should normally be read in relation to its fellows, but particularly so here because Congress explicitly linked subsection (g) of § 202 to 'any requirements under this section.' Effective price control depended on unimpeded access to relevant information. To that end, § 202 authorized the Administrator to impose the 'requirements' of the section, and those from whom they were exacted were under duty of compliance by subsection (e), while subsection (g) barred any excuse from compliance by a claim of privilege against self-crimination by the assurance of immunity from prosecution.

Subsections (a), (b), (c) and (e) impose these four requirements: persons engaged in the vast range of business subject to the Act may be required to (1) make and keep records, (2) make reports and (3) permit the inspection and copying of records and other documents; such persons as well as others may be required to (4) 'appear and testify or to appear and produce documents, or both, at any designated place.' An unconstrained reading of subsection (g) insured prompt compliance with all these requirements by removing any excuse based on the privilege against self-crimination.

Here the Administrator required the petitioner to 'keep and make available for examination by the Office of Price Administration * * records of the same kind as he has customarily kept *  *  * .' § 14(b), MPR 426, 8 F.R. 9546. The Government contends that because the records of petitioner's own business, those that he 'customarily kept,' were required to be so kept by the Administrator, he was compelled to disclose their contents even though they may have incriminated him, and that he was afforded no immunity under subsection (g) because he was not disclosing what were really his records. Surely this is to devitalize the phrase 'any requirements under this section' if not to render it meaningless.

The Court supports this devitalization with the 'short answer' that the immunity provided does cover compliance with any of these requirements as to which a person would have been excused from compliance because of his constitutional privilege. The short reply is that, bearing in mind the Court's conclusions as to the scope of the constitutional privilege, only the fourth requirement appears to be thus covered. I do not wish to lay too much stress on the Court's singular interpretation of the plural 'requirements.' Plainly, the Court construes § 202(g) as according immunity only to oral testimony under oath and to the production of any documents which the Administrator did not have the foresight to require to be kept.

The Court thus construes the words 'complying with any requirements under this section' to read 'appearing and testifying or producing documents other than those required to be kept pursuant to this section.' Construction, no doubt, is not a mechanical process and even when most scrupulously pursued by judges may not wholly escape some retrospective infusion so that the line between interpretation and substitution is sometimes thin. But there is a difference between reading what is and rewriting it. The Court here does not adhere to the text but deletes and reshapes it. Such literary freewheeling is hardly justified by the assumption that Congress would have so expressed it if it had given the matter attentive consideration. In the Monia case the Court, having concluded that a similar question was present, had no difficulty in answering: 'It is not for us to add to the legislation what Congress pretermitted.' 317 U.S. at page 430, 63 S.Ct. at page 412.

Both logic and authority, apart from due regard for our limited function, demonstrate the wisdom of respecting the text. The reach of the immunity given by § 202(g) is spelled out in the incorporated terms of the Compulsory Testimony Act of 1893. These provide that where, as here, documentary evidence is exacted which may tend to incriminate, he who produces it shall not 'be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise * *  * .' 27 Stat. 443, 49 U.S.C. § 46, 49 U.S.C.A. § 46. There is of course nothing in this provision to support the finespun exegesis which the Court puts upon § 202(g). The Government admits as much by acknowledging that 'the literal language of the Compulsory Testimony Act possibly may be so read' as to support the present claim of immunity. But it urges that nothing in the 'language or legislative history' of § 202(g) requires a broader immunity than an adjudication of the scope of the constitutional privilege would exact.

The language yiedls no support for the Government's sophisticated reading adopted by the Court. Nor is there anything in the legislative history to transmute the clear import of § 202 into esoteric significance. So far as it bears upon our problem, the legislative history of the Act merely shows that § 202 in its entirety was included for the purpose of 'obtaining information.' Nothing in that history throws any light upon the scope of the immunity afforded by subsection (g). What is there in this silence of Congress that speaks so loudly to the Court? What are the 'inescapable implications of the legislative history' that compelled its extraordinary reading of this statute? Surely, the fact that the Administrator's authority to require the keeping of records and the making of reports was stricken from the bill on its original passage through the House but was eventually reinserted, reinserted, merely indicates that Congress finally concluded that obtaining information was necessary for effective price regulation.

But the Court reads into § 202(g) the meaning that 'they' put upon the record-keeping provisions that Congress thus reinserted into the bill. 'They,' the 'general Counsel for the OPA,' appeared and testified orally at the Senate Hearings and, in urging restoration of the licensing (§ 205(f)) and record-keeping provisions, secured permission to file various briefs and documents with the Committee. While there is nothing in the General Counsel's oral testimony that sheds light upon our problem, it does appear from one of the exhibits filed by him that the Court has correctly determined the far-reaching construction that he had given to provisions which the House had rejected as 'redundant.' But our task is to determine, as best we can, what Congress meant-not what counsel sponsoring legislation, however disinterestedly, hoped Congress would mean. If counsel's views had been orally expressed to the Committee, the Committee might have given some indication of its views. But even if upon such disclosure of counsel's views the Committee had remained silent, this would hardly have furnished sufficient evidence to transmute the language that Congress actually employed to express its meaning into some other meaning.

To attribute to Congress familiarity with, let alone acceptance of, a construction solely by reason of the fact that our research reveals its presence among the 60,000-word memoranda which the Chairman of the Senate Committee permitted the General Counsel of the OPA to i le, is surely to defy the actualities of the legislative process. Is there the slenderest ground for assuming that members of the Committee read counsel's submission now relied upon by the Court? There is not a reference to the contentions of the OPA wholly apart from that brief, in any report of a committee of either House or in any utterance on the floor of either House. The fact of the matter is that the House had passed the measure before the brief, in type smaller than that of the footnotes in this opinion, appeared in a volume of hearings comprising 560 pages (part of the three volumes of House and Senate Hearings containing 2,865 pages). The Government, in submitting to us the legislative history of the immunity provision with a view to sustaining its claims, did not pretend that the Congress was either aware of the brief or accepted the construction it proffered. The suggestion that members of a congressional committee have read, and presumptively agreed with, the views found in a memorandum allowed to be filed by a witness and printed in appendix form in the hearings on a bill, let alone that both Houses in voting for a measure adopted such views as the gloss upon the language of the Act which it would not otherwise bear, can only be made in a Pickwickian sense. It is hard to believe that even the most conscientious members of the Congress would care to be charged with underwriting views merely because they were expressed in a memorandum filed as was the OPA brief, on which so much reliance is placed in the Court's opinion. If the language of a statute is to be subjected to the esoteric interpretive process that the suggested use of the OPA brief implies, since it is the common practice to allow memoranda to be submitted to a committee of Congress by interests, public and private, often high-minded enough but with their own axes to grind, great encouragement will be given to the temptations of administrative officials and others to provide self-serving 'proof' of congressional confirmation for their private views through incorporation of such materials. Hitherto unsuspected opportunities for assuring desired glosses upon innocent-looking legislation would thus be afforded.

We agree with the Government that Congress gave the Administrator broad powers for obtaining information as an aid to the administration and enforcement of the Act, and that 'The immunity provision of Section 202(g) was inserted to insure a full exercise of these powers unhampered by the assertion of the privilege against self-incrimination.' Certainly. But how does it follow that Congress thereby intended sub silentio to effectuate this broad purpose by confining the immunity accorded within the undefined controversial scope of the Fifth Amendment? One would suppose that Congress secured its object, as this Court held in the Monia case, by giving immunity and so taking away contentions based on the constitutional privilege.

Plainly, it would have sufficed to dispose of the present controversy by holding that Congress granted immunity by § 202(g) to persons who produced their own records, as were the records in this case, and not in their possession as custodians of others, even though required to be kept by § 202. To adapt the language of Mr. Justice Holmes, words have been strained by the Court more than they should be strained in order to reach a doubtful constitutional question. See Blodgett v. Holden, 275 U.S. 142, 148, 276 U.S. 594, 48 S.Ct. 105, 107, 72 L.Ed. 206.

And so we come to the Court's facile treatment of the grave constitutional question brought into issue by its disposition of the statutory question. In the interest of clarity it is appropriate to note that the basic constitutional question concerns the scope oft he Fifth Amendment, not the validity of the Price Control Act. The Court has construed the immunity afforded by § 202(g) of the Act as co-extensive with the scope of the constitutional privilege against self-incrimination. Thus construed, the subsection is of course valid, since, by hypothesis, it affords a protection as broad as the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819. The vice of this construction-and the importance of the point warrants its reiteration-is precisely that it necessitates interpretation of the Constitution instead of avoiding it. And if the precedents mean anything this course will be followed in every future case involving a question of statutory immunity.

The Court hardly finds a problem in disposing of an issue far-reaching in its implications, involving as they do a drastic change in the relations between the individual and the Government as hitherto conceived. The Court treats the problem as though it were almost self-evident that when records are required to be kept for some needs of Government, or to be kept in a particular form, they are legally considered governmental records and may be demanded as instruments of self-crimination.

Ready-made catch-phrases may conceal but do not solve serious constitutional problems. 'Too broadly generalized conceptions are a constant source of fallacy.' Holmes, J., in Lorenzo v. Wirth, 170 Mass. 596, 600, 49 N.E. 1010, 1011, 40 L.R.A. 347. Here the fallacy can be traced to the rephrasing of our problem into terms 'to which, as lawyers, the judges have become accustomed,' Ibid.; then, by treating the question as though it were the rephrased issue, the easy answer appears axiomatic and, because familiar, authoritative. Subtle question-begging is nevertheless question-begging. Thus: records required to be kept by law are public records; public records are non-privileged; required records are non-privileged.

If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment-to say nothing of State and local legislation-has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume.

The Congress began its history with such legislation. Chapter I of the Laws of the First Session of the First Congress-'An Act to regulate the Time and Manner of administering certain Oaths' contained a provision requiring the maintenance of records by persons administering oaths to State officials. 1 Stat. 23, 24. Chapter V-'An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandise imported into the United States'-contained a provision requiring an importer to produce the original invoice and to make a return concerning the consigned goods with the collector of the port of arrival. 1 Stat. 29, 39-40.

Every Congress since 1789 has added record-keeping and reporting requirements. Indeed, it was the plethora of such provisions that led President Roosevelt to establish the Central Statistical Board in 1933 and induced the enactment, in 1942, of the Federal Reports Act, 56 Stat. 1078, 5 U.S.C.A. § 139 et seq. See, generally, Report of the Central Statistical Board, H. Doc. No. 27, 76th Cong., 1st Sess.; Centralization and Coordination of Federal Statistics-Report to the Committee on Appropriations of the House of Representatives, December 4, 1945, 91 Cong. Rec. A5419. On April 25, 1939, the Central Statistical Board reported that, 'Since the end of 1933, the Board has reviewe in advance of dissemination more than 4,600 questionnaries and related forms and plans proposed for use by Federal agencies. The records for the past 2 years show that the Board has received forms from 52 Federal agencies and a number of temporary interdepartmental committees.' See Hearings before the House Committee on Expenditure in the Executive Departments on H.R. 5917, 76th Cong., 1st Sess., at p. 32. The Board, on the basis of a comprehensive survey of the financial and other reports and returns made to 88 Federal agencies by private individuals, farms, and business concerns during the fiscal year ending June 30, 1938, informed Congress as follows:

'Counting both the administrative and the nonadministrative reports and returns, the Board's inquiry revealed that some 49,000,000 of the total during the year were collected in accordance with statutory provisions specifically authorizing or directing the collection of reports of the types called for. Approximately 55,000,000 returns were collected by agencies in connection with their performance of functions which were specifically authorized by statutes, although the statutes did not specify the reports. In such cases the information sought was obviously necessary in carrying out required functions. Nearly 27,000,000 returns were collected by Federal agencies on report forms for each of which the legal authority was too general or too indefinite to permit its clear definition. The remaining 5,000,000 returns were made under a variety of types of legal authorities including authorizations implied in appropriations made specifically to support the collection of the reports.

'Somewhat less than half of the returns made to Federal agencies on all forms * *  * were mandatory by law, in the sense that a penalty is prescribed in case of failure of the respondent to file a required report. Some of these mandatory returns are very elaborate, and as a consequence over 60 percent of the total number of answers on report forms, other than applications, were in accordance with mandatory requirements.' (H. Doc. No. 27, supra, at 11-12.)

I do not intend by the above exposition to cast any doubt upon the constitutionality of the record-keeping or reporting provisions of the Emergency Price Control Act or, in general, upon the vast number of similar statutory requirements. Such provisions serve important and often indispensable purposes. But today's decision can hardly fail to hamper those who make and those who execute the laws in securing the information and data necessary for the most effective and intelligent conduct of Government.

The underlying assumption of the Court's opinion is that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become 'public' records in the sense that they fall outside the constitutional protection of the Fifth Amendment. The validity of such a doctrine lies in the scope of its implications. The claim touches records that may be required to be kept by federal regulatory laws, revenue measures, labor and census legislation in the conduct of business which the understanding and feeling of our people still treat as private enterprise, even though its relations to the public may call for governmental regulation, including the duty to keep designated records.

If the records in controversy here are in fact public, in the sense of publicly owned, or governmental, records, their non-privileged status follows. See Davis v. United States, 328 U.S. 582, 594, 602, 66 S.Ct. 1256, 1262, 1265, 90 L.Ed. 1453 (dissenting opinion). No one has a private right to keep for his own use the contents of such records. But the notion that whenever Congress requires an individual to keep in a particular form his own books dealing with his own affairs his records cease to be his when he is accused of crime, is indeed startling.

A public record is a pul ic record. If the documents in controversy are 'public records' and as such non-privileged in a prosecution under the Price Control Act, why are they not similarly public and non-privileged in any sort of legal action? There is nothing in either the Act or the Court's construction of it to qualify their 'public' nature. Is there any maintainable reason why the Fifth Amendment should be a barrier to their utilization in a prosecution under any other law if it is no barrier here? These records were, as a matter of fact, required to be kept (and hence 'public') quite apart from this Act. See Int.Rev.Code, § 54(a), 26 U.S.C.A.Int.Rev.Code, § 54(a), and Treas. Reg. 111, § 29.54-1. If an examination of the records of an individual engaged in the processing and sale of essential commodities should disclose non-essential production, for example, why cannot the records be utilized in prosecutions for violations of the priorities or selective service legislation? Cf. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; but cf. Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229.

Moreover, the Government should be able to enter a man's home to examine or seize such public records, with or without a search warrant, at any time. If an individual should keep such records in his home, as millions do, instead of in his place of business, why is not his home for some purposes and in the same technical sense, a 'public' library? Compare Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453, and Harris v. United States, supra, with the 'well-stated' opinion in United States v. Mulligan, D.C., 268 F. 893; but see Trupiano v. United States, supra. This is not 'a parade of horribles.' If a man's records are 'public' so as to deprive him of his privilege against self-crimination, their publicness inheres in them for many other situations.

Indeed, if these records are public, I can see no reason why the public should not have the same right that the Government has to peruse, if not to use, them. For, public records are 'of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure.' Evanston v. Gunn, 99 U.S. 660, 666, 25 L.Ed. 306. It would seem to follow, therefore, that these public records of persons engaged in what to the common understanding is deemed private enterprise should be generally available for examination and not barred by the plea that the enterprise would thereby cease to be private.

Congress was guilty, perhaps, of no more than curious inconsistency when it provided in § 202(h) of the Act for the confidential treatment of these 'public' records. But the seeming inconsistency generally applies to information obtained by the Government pursuant to record-keeping and reporting requirements. See H. Doc. No. 27, supra, at pp. 26 28; 56 Stat. 1078, 1079, 5 U.S.C.A. § 139 et seq.; H.R.Rep. No. 1651, 77th Cong., 2d Sess., at pp. 4-5; ('We (the Bureau of the Census) do not even supply the Department of Justice or anybody else with that information') Hearings before the House Committee on Expenditures in the Executive Departments on H.R. 7590, 74th Cong., 1st Sess., at p. 63.

The fact of the matter, then, is that records required to be kept by law are not necessarily public in any except a wordplaying sense. To determine whether such records are truly public records, i.e., are denudd of their essentially private significances, we have to take into account their custody, their subject matter, and the use sought to be made of them.

It is the part of wisdom, particularly for judges, not to be victimized by words. Records may be public records regardless of whether 'a statute requires them to be kept' if 'they are kept in the discharge of a public duty' either by a public officer or by persons acting under his direction. Evanston v. Gunn, supra. Chapter I of the first statute passed by Congress, supra, is an example of an act requiring a public record to be kept.

Records do not become public records, however, merely because they are required to be kept by law. Private records under such circumstances continue to be private records. Chapter V of the Acts of the First Congress, supra, is an example of such a private record required to be kept by law.

Is there, then, any foundation for the Court's assumption that all records required to be kept by law are public and not privileged? Reliance is placed on language in Wilson v. United States, 221 U.S. 361, 36 S.Ct. 538, 55 L.Ed. 771, Ann.Cas. 1912D, 558. The holding in that case has no real bearing on our problem. Wilson, the president of a corporation, in answer to a subpena to produce, refused to surrender the corporation's books and records on the ground that their contents would tend to incriminate him. He appealed to this Court from a judgment committing him for contempt. The case was disposed of on the ground that the books were the corporation's and not 'his private or personal books,' that the 'physical custody of incriminating documents does not of itself protect the custodian against their compulsory production,' and that, therefore, 'the custodian has no privilege to refuse production although their contents tend to criminate him.' 221 U.S. at pages 378, 380, 382, 31 S.Ct. at pages 543, 544, 545. The Court concluded as follows:

'The only question was whether, as against the corporation, the books were lawfully required in the administration of justice. When the appellant became president of the corporation, and as such held and used its books for the transaction of its business committed to his charge, he was at all times subject to its direction, and the books continuously remained under its control. If another took his place, his custody would yield. He could assert no personal right to retain the corporate books against any demand of government which the corporation was bound to recognize.

'We have not overlooked the early English decisions to which our attention has been called * *  * but these cannot be deemed controlling. The corporate duty, and the relation of the appellant as the officer of the corporation to its discharge, are to be determined by our laws. Nothing more is demanded than that the appellant should perform the obligations pertaining to his custody, and should produce the books which he holds in his official capacity in accordance with the requirements of the subpoena. None of his personal papers are subject to inspection under the writ, and his action in refusing to permit the examination of the corporate books demanded fully warranted his commitment for contempt.' 221 U.S. at pages 385, 386, 21 S.Ct. at page 546.

The Wilson case was correctly decided. The Court's holding boiled down to the proposition that 'what's not yours is not yours.' It gives no sanction for the bold proposition that Congress can legislate private papers in the hands of their owner, and not in the hands of a custodian, out of the protection afforded by the Fifth Amendment. Even if there were language in the Wilson opinion in that direction, an observation taken from its context would seem to be scant justification for resolving, and needlessly, 'a very grave question of constitutional law, involving the personal security, and privileges and immunities of the citizen.' Boyd v. United States, 116 U.S. 616, 618, 6 S.Ct. 524, 526, 29 L.Ed. 746.

The conclusion reached today that all records required to be kept by law are public records cannot lean on the Wilson opinion. This is the language relied upon by the Court: 'The principal (that a custodian has no privilege as to the documents in his custody) applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. There the privilege which exists as to private papers cannot be maintained.' 221 U.S. at page 380, 31 S.Ct. at page 544.

But Mr. Justice Hughes, the writer of the Wilson opinion, went on to note that 'There are abundant illustrations in the decisions' of this principle that a custodian has no privilege as to the documents in his custody just as no one has a privilege as to public or official records because they are not his private papers. He resorted to these illustrations concerning custodians because the dissenting opinion of Mr. Justice McKenna, while accepting the premise that public records were not privileged, quarreled with the Court's holding as to the absence of a custodian's privilege concerning non-public records, as follows: 'As the privilege is a guaranty of personal liberty, it should not be qualified by construction, and a distinction based on the ownership of the books demanded as evidence is immaterial. Such distinction has not been regarded except in the case of public records, as will be exhibited by a review of the authorities.' 221 U.S. at page 388, 31 S.Ct. at page 547.

The illustrations utilized by Mr. Justice Hughes to meet this challenge raised by the dissent stand for the proposition that (a) a custodian has no privilege, and (b) public documents and records are non-privileged, but not at all on any notion that private records required to be kept by law are 'public' records. Before analyzing the eleven precedents or illustrations thus employed, it is worthy of note that the illustrations were derived from the Government's brief. It is significant that that brief, by Solicitor General Frederick W. Lehmann, well-known for his learning, contained no reference to the required records' doctrine. On the contrary the Government cited these cases to support its argument that: 'The immunity granted by the Constitution is purely personal.'

These are the 'illustrations in the decisions':

(1) Bradshaw v. Murphy, 7 C. & P. 612, where 'it was held that a vestry clerk who was called as a witness could not, on the ground that it might incriminate himself, object to the production of the vestry books kept under the statute, 58 Geo. III, chap. 69, § 2.' 211 U.S. at page 380, 31 S.Ct. at page 544.

Comment.-This is an instance where records were required to be kept by a public officer (for such, in England, was a parish vestry clerk). Clearly the clerk had no privilege as to such records since (1) they were not his; he was merely their custodian, and (2) he was a public officer.

(2) State v. Farnum, 73 S.C. 165, 53 S.E. 83, where it was held that the dispenser of the State Dispensary had to disclose to a legislative committee the official books of that State institution.

Comment.-Under South Carolina law the dispenser was an officer of the State; the books were true public records; he was their custodian.

(3) State v. Donovan, 10 N.D. 203, 86 N.W. 709, 711, where it was held that a register of sales of intoxicating liquor kept by a druggist pursuant to a statute providing that such record 'shall be open for the inspection of the public at all reasonable times during business hours, and any person so desiring may take memoranda or copies thereof' was a public record.

Comment.-The State court construed the statute to make the druggist a public officer and, as such, the cuso dian of the register for the State. The court quoted authority to the effect that the register was 'the property of the state, and not of the citizen, and is in no sense a private memorandum.' 10 N.D. at page 209, 86 N.W. at page 711. Are we to infer from the Court's opinion in this case that the books and records petitioner customarily kept were not his property but that of the United States Government, and that they 'shall be open for the inspection of the public at all reasonable times during business hours, and any person * *  * may take memoranda or copies thereof'? Ibid. and cf. Evanston v. Gunn, supra.

(4) State v. Davis, 108 Mo. 666, 18 S.W. 894, 32 Am.St.Rep. 640, where it was held that a druggist had no privilege as to the prescriptions he filled for sales of intoxicating liquor.

Comment.-Here the prescriptions were 'required to be kept by law' but they constituted 'public' records in the pure Wilson sense. The prescriptions belonged to the physicians or their patients, 'and the druggist (was) merely their custodian.' 108 Mo. at page 671, 18 S.W. at page 895.

(5) State v. Davis, 68 W.Va. 142, 69 S.E. 639, 32 L.R.A.,N.S., 501, Ann.Cas.1912A, 996 (prescription-keeping case virtually identical with State v. Davis, 108 Mo. 666, 188 S.W. 894, 32 Am.St.Rep. 640).

(6) People v. Combs, 158 N.Y. 532, 53 N.E. 527, where it was held that a coroner had no privilege as to official inquest records, required to be filed with the county clerk, over his contention that they were private records because they were false and had been found in his own office.

Comment.-'The papers were in a public office, in the custody of a clerk who was paid by the city. On their face, they were public records, and intended to be used as such.' 158 N.Y. at page 539, 53 N.E. at page 529.

(7) Louisville & N.R. Co. v. Commonwealth, Ky., 51 S.W. 167, where it was held that a railroad corporation had no privilege as to a tariff sheet.

Comment.-The tariff sheet was 'required by law to be publicly posted at the station, and was in fact so posted.' 51 S.W. at page 167. Petitioner is not a railroad corporation and his records were not 'publicly posted.'

(8) State v. Smith, 74 Iowa 580, 38 N.W. 492, where it was held that a pharmacist had no privilege as to the monthly reports of liquor sales that he had made to the county auditor pursuant to a statutory reporting requirement.

Comment.-The reports in the auditor's office were 'public records of the office, which are open to the inspection of all, and may be used in evidence in all cases between all parties, when competent, to establish any fact in issue for judicial determination.' 74 Iowa at pages 583, 584, 38 N.W. at page 494. Petitioner's records were in his possession and were not open for public inspection.

(9) State v. Cummins, 76 Iowa 133, 40 N.W. 124 (same as State v. Smith, supra).

(10) People v. Henwood, 123 Mich. 317, 82 N.W. 70 (liquor sales reporting requirement held valid).

(11) Langdon v. People, 133 Ill. 382, 24 N.E. 874 held that seizure pursuant to search warrant of official State documents unlawfully in appellant's possession constituted reasonable search 'They were not private papers.' 133 Ill. at page 398, 24 N.E. at page 878.

In summary of the authorities cited as illustrations of the principle recognized and applied by the Court in the Wilson case, then, it should be obvious that they neither stand for the proposition that the fact that private records are required to be kept by statute makes them public records by operation of law, nor did Mr. Justice Hughes misconstrue them in reaching the decision in the Wilson case.

Were there any doubt as to the point of the illustrations in the Wilson case, surely we could safely permit that doubt to be resolved by the Wilson opinion itself. After reviewing the illustrative cases, Mr. Justice Hughes observed: 'The fundamental ground of decision in this class of cases is that where, by virtue of their character and the rules of law applc able to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him. In assuming their custody he has accepted the incident obligation to permit inspection.' 221 U.S. at pages 381, 382, 31 S.Ct. at page 545.

Evidently the dictum in the Wilson case and the authorities therein cited need to be bolstered for the use to which they are put in this case. We are told that 'Other state supreme court decisions, subsequent to the Wilson case, similarly treat as non-privileged, records required by statute to be kept.' These are the five instances cited:

(1) Paladini v. Superior Court, 178 Cal. 369, 173 P. 588, where it was held that the statutory procedure whereby the State Market Director could compel the production of the sales records of licensed fish dealers was valid.

Comment.-The court did not hold that the records were 'non-privileged,' but disposed of the contention that the statute violated the constitutional privilege against self-incrimination on the ground that 'The proceeding before the state market director is not criminal in its nature, and the order compelling the petitioners to produce their books before the state market director was not in violation of the constitutional provision, which prohibits a court or officer from requiring a defendant in a criminal case to furnish evidence against himself.' 178 Col. at page 373, 173 P. at Page 590. The court did dispose of the contention that the statute violated the Fourth Amendment of the United States Constitution on the ground that the records were not private. But the records here were public records because, since it was conceded that the fish belonged to the State, 'They contain a record of the purchase and sale of the property of the state, by those having a qualified or conditional interest therein.' Ibid. There is no suggestion in this case that petitioner's records were public records because his fruit and vegetables were the property of the United States Government.

(2) St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870, where a municipal ordinance requiring junk dealers to keep books of registry recording their purchases and providing that the books be open for inspection and examination by the police or any citizen was upheld against the contention that it violated the State constitutional provision against unreasonable searches and seizures for private purposes.

Comment.-The case was disposed of by the court's interpretation of the words 'any citizen' as being limited in meaning to 'one whose property has been stolen.' 273 Mo. at page 576, 201 S.W. at page 880. The records here were 'required to be kept by statute,' it is true, but the court had no occasion to, and did not, go into the question as to whether the records were 'non-privileged.'

(3) State v. Legora, 162 Tenn. 122, 34 S.W.2d 1056, where a statute requiring junk dealers to keep a record of their purchases was upheld.

Comment.-A record which 'shall at all times be open to inspection of * *  * any person who may desire to see the same,' 162 Tenn. at page 124, 34 S.W.2d at page 1057, is, of course, a 'public' record. Evanston v. Gunn, supra; cf. St. Louis v. Baskowitz, supra.

(4) State v. Stein, 215 Minn. 308, 9 N.W.2d 763, where a statute requiring licensed dealers in raw furs to keep records of their sales and purchases was upheld.

Comment.-The records here were public records for the same reason that the records involved in the Paladini case were public records-'the state is the owner, in trust for the people, of all wild animals.' 215 Minn. at page 311, 9 N.W.2d at page 765.

(5) Financial Aid Corporation v. Wallace, 216 Ind. 114, 23 N.E.2d 472, 125 A.L.R. 736, where a statute requiring licensed small loan concerns to keep records and providing for their inspection by the State Department of Financial Institutions was upheld.

Comment.-The court had no occasion to, and did nt, go into the question as to whether the records were either 'public' or 'non-privileged.'

It appears to me, therefore, that the authorities give no support to the broad proposition that because records are required to be kept by law they are public records and, hence, non-privileged. Private records do not thus become 'public' in any critical or legally significant sense; they are merely the records of an industry or business regulated by law. Nor does the fact that the Government either may make, or has made, a license a prerequisite for the doing of business make them public in any ordinary use of the term. While Congress may in time of war, or perhaps in circumstances of economic crisis, provide for the licensing of every individual business, surely such licensing requirements do not remove the records of a man's private business from the protection afforded by the Fifth Amendment. Even the exercise of the war power is subject to the Fifth Amendment. See, e.g., Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 155, 156, 40 S.Ct. 106, 107, 108, 64 L.Ed. 194. Just as the licensing of private motor vehicles does not make them public carriers, the licensing of a man's private business, for tax or other purposes, does not under our system, at least so I had supposed, make him a public officer.

Different considerations control where the business of an enterprise is, as it were, the public's. Clearly the records of a business licensed to sell state-owned property are public records. Cf., e.g., Paladini v. Superior Court, supra; State v. Stein, supra. And the records of a public utility, apart from the considerations relevant to corporate enterprise, may similarly be teated as public records. Cf., e.g., Louisville & N.R. Co. v. Commonwealth, supra; Financial Aid Corporation v. Wallace, supra. This has been extended to the records of 'occupations which are malum in se, or so closely allied thereto as to endanger the public health, morals, or safety.' St. Louis v. Baskowitz, supra, 273 Mo. at page 554, 201 S.W. at page 873; cf., e.g., State v. Legora, supra; State v. Donovan, supra; State v. Smith, supra.

Here the subject matter of petitioner's business was not such as to render it public. Surely, there is nothing inherently dangerous, immoral, or unhealthy about the sale of fruits and vegetables. Nor was there anything in his possession or control of the records to cast a cloud on his title to them. They were the records that he customarily kept. I find nothing in the Act, or in the Court's construction of the Act, that made him a public officer. He was being administered, not administering. Nor was he in any legitimate sense of the word a 'custodian' of the records. I see nothing frivolous in a distinction between the records of an 'unincorporated entrepreneur' and those of a corporation. On the contrary, that distinction was decisive of the Wilson holding: 'But the corporate form of business activity, with its chartered privileges, raises a distinction when the authority of government demands the examination of books.' 221 U.S. at page 382, 31 S.Ct. at page 545.

And the Court quoted at length from Hale v. Henkel, 201 U.S. 43, 74, 75, 26 S.Ct. 370, 379, 50 L.Ed. 652:

" * *  * we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. *  *  *

"Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises * *  * ." 221 U.S. at page 383, 31 S.Ct. at page 545.

The distinction between corporate and individual enterprise is one of the deepest in our constitutional law, as it is for the shapers of public policy.

The phrase 'required to be kept by law,' then, is not a magic phrase by which the legislature opens the door to inroads upon the Fifth Amendment. Statutory provisions similar to § 202(b) of this Act, requiring the keeping of records and making them available for official inspection, are constitutional means for effective administration and enforcement. It follows that those charged with the responsibility for such administration and enforcement may compel the disclosure of such records in conformity with the Fourth Amendment. See Boyd v. United States, supra, 116 U.S. at pages 623, 624, 6 S.Ct. at page 528. But it does not follow that such disclosures are beyond the scope of the protection afforded by the Fifth Amendment. For the compulsory disclosure of a man's 'private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.' Id., 116 U.S. at page 632, 6 S.Ct. at page 533.

The Court in the Boyd case was fully cognizant of the sense and significance of the phrase 'books required by law to be kept for their inspection.' Id., 116 U.S. at pages 623, 624, 6 S.Ct. at page 528. Surely the result of that decision, if not the opinion itself, speaks loudly against the claim that merely by virtue of a record-keeping provision the constitutional privilege against self-incrimination becomes inoperative. The document in controversy in the Boyd case was historically, and as a matter of fact, much more of a 'required record' than the books and records the petitioner here 'customarily kept.' If the Court's position today is correct the Boyd case was erroneously decided.

In disregarding the spirit of that decision, the Court's opinion disregards the clarion call of the Boyd case: obsta principiis. For, while it is easy enough to see this as a petty case and while some may not consider the rule of law today announced to be fraught with unexplored significance for the great problem of reconciling individual freedom with governmental strength, the Boyd opinion admonishes against being so lulled. 'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.' Id., 116 U.S. at page 635, 6 S.Ct. at page 535.

Violators should be detected, tried, convicted, and punished but not at the cost of needlessly bringing into question constitutional rights and privileges. While law enforcement officers may find their duties more arduous and crime detection more difficult as society becomes more complicated, the constitutional safeguards of the individual were not designed for short-cuts in the administration of criminal justice.

And so I conclude that the Court has misconstrued the Fifth Amendment by narrowing the range and scope of the protection it was intended to afford. The privilege against self-incrimination is, after all, 'as broad as the mischief against which it seeks to guard.' Counselman v. Hitchcock, supra, 142 U.S. at page 563, 12 S.Ct. at page 198. If Congress by the easy device of requiring a man to keep the private papers that he has customarily kept can render such papers 'public' and nonprivileged, there is little left to either the right of privacy or the constitutional privilege.

Even if there were authority for the temerarious pronouncement in today's opinion, I would insist that such authority was illfounded and ought not to be followed. There is no such authority. The Court's opinion can gain no strength beyond itself. The persuasiveness of its opinion is not enhanced by the endeavor of the majority of the Court, so needlessly reaching out for a constitutional issue, to rest its ominous inroads upon the Fifth Amendment not on the wisdom of their determination but on blind reliance uponn on-persuasive authority.